Slezak v. Lisle Center, Inc.

625 N.E.2d 911, 253 Ill. App. 3d 876, 192 Ill. Dec. 756, 1993 Ill. App. LEXIS 1830
CourtAppellate Court of Illinois
DecidedDecember 10, 1993
DocketNo. 2—92—1020
StatusPublished
Cited by1 cases

This text of 625 N.E.2d 911 (Slezak v. Lisle Center, Inc.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Slezak v. Lisle Center, Inc., 625 N.E.2d 911, 253 Ill. App. 3d 876, 192 Ill. Dec. 756, 1993 Ill. App. LEXIS 1830 (Ill. Ct. App. 1993).

Opinion

PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Patsy Slezak, appeals an order of the circuit court of Du Page County dismissing her negligence action against defendant, Lisle Center, Inc. The order arose from a motion of the defendant pursuant to section 2 — 619(a)(5) the Code of Civil Procedure (735 ILCS 5/2 — 619(a)(5) (West 1992)) that the action was not commenced within the time limited by law.

Plaintiff appeals the court’s decision that the situation failed to meet condition three of the relation-back doctrine of section 2 — 616(d) (735 ILCS 5/2 — 616(d) (West 1992)). Because defendant did not cross-appeal the court’s holding as to the other four conditions of section 2 — 616(d), those issues are not before us on appeal. (Burrgess v. Industrial Comm’n (1988), 169 Ill. App. 3d 670.) For the following reasons, we reverse.

The following facts relate to this appeal. On April 1, 1991, plaintiff filed a complaint sounding in negligence against Holiday Inn Crown Plaza, Holiday Inn, Inc., a Tennessee corporation registered to do business and doing business in Illinois. Plaintiff sought to recover money damages for injuries allegedly sustained in a slip-and-fall incident on April 4, 1989, at a hotel located at 3000 Warrenville Road, Lisle, Illinois (the hotel). The sheriff of Cook County served process on Ms. D. Schull per CT Corporation System, Inc. (CT), as registered agent for Holiday Inns, Inc. (HI). The sheriff of Du Page County served process on Mr. Keith Sennstrom as manager of the hotel, on behalf of “Holiday Inn Crown Plaza.”

“Holiday Inn Crown Plaza” is the registered mark of HI. Lisle Center, Inc. (defendant), owns the hotel under a franchise agreement with HI. Defendant operates the hotel through Aircoa Hospitality Services (Aircoa). Mr. Sennstrom is an employee of Aircoa. CT serves both HI and defendant as registered agent.

Counsel filed an appearance on behalf of “Holiday Inns, Inc., sued incorrectly as Holiday Inn Crown Plaza, Holiday Inn, Inc.” HI answered the complaint, denying ownership, operation, maintenance, and control of the hotel.

HI then moved for summary judgment on the ground that as franchisor it did not own, operate, maintain, or control the hotel. The court granted summary judgment, and plaintiff moved to vacate the order and to file an amended complaint naming Lisle Center, Inc., as defendant. The court vacated the order, granted leave to file the amended complaint, and again granted summary judgment for HI.

Plaintiff filed her amended complaint against Lisle Center, Inc., on December 5, 1991, three days after the court granted leave to do so. The sheriff of Cook County served process on Ms. D. Schull per CT, as registered agent for Lisle Center, Inc., on December 23, 1991. Counsel filed an appearance on behalf of defendant and moved to dismiss pursuant to the section 2 — 619(a)(5) (735 ILCS 5/2 — 619(a)(5) (West 1992)), asserting that the action was time barred by section 13 — 202, the applicable statute of limitations (735 ILCS 5/13 — 202 (West 1992)). The court granted dismissal.

In a motion to reconsider dismissal, plaintiff argued that the relation-back doctrine of section 2 — 616(d) should apply, relating her amended complaint back to the date of the original complaint, so that the action would not be time barred. (735 ILCS 5/2 — 616(d) (West 1992).) The court held that although plaintiff had established four of the requirements of the relation-back doctrine, she had failed as to one and therefore relation back would not apply.

Actions for damages for personal injury must be commenced within two years of the time the cause of action accrues. (735 ILCS 5/ 13 — 202 (West 1992).) An action against a person not originally named a defendant is not time barred, however, if all the following conditions are met: (1) the original action was commenced before the statutory time limit had expired; (2) the failure to join the putative defendant as a defendant was inadvertent; (3) service of summons was in fact had upon the putative defendant or the putative defendant’s agent; (4) the putative defendant knew the original action was pending and arose from a transaction involving or concerning him or her; and (5) the original and amended pleadings demonstrate that the cause of action in the amended pleading arose from the same transaction or occurrence as that in the original pleading. 735 ILCS 5/2 — 616(d) (West 1992).

The trial court found in plaintiff’s favor that (1) plaintiff had filed the original complaint before the expiration of the statute of limitations; (2) plaintiff inadvertently failed to join Lisle as defendant; (3) defendant knew that the action was pending and that it arose from an occurrence in defendant’s hotel; and (4) the cause of action in the amended complaint arose from the same transaction as that in the original complaint. However, the court found in defendant’s favor that proper service of process was not made upon defendant or its agent. We disagree.

Unambiguous terms of a statute must be given their plain and ordinary meaning. (Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill. 2d 450, 455; Auto Owners Insurance v. Berkshire (1992), 225 Ill. App. 3d 695, 698.) We have held that a court should not insert words into a legislative enactment when the statute otherwise presents a cogent and justifiable legislative scheme. Auto Owners, 225 Ill. App. 3d at 698.

The following language is at issue in this case: “(3) service of summons was in fact had upon the person, his or her agent or partner, *** even though he or she was served in the wrong capacity or as agent of another.” (735 ILCS 5/2-616(d)(3) (West 1992).) In this case, service was in fact had upon defendant’s agent, CT, even though CT was served as agent of another. Defendant contends that where an entity serves as registered agent for many entities, this rule should not apply. The language of the statute includes no such exception, and we are not inclined to create one.

In Corn v. Lorain Division, Koehring Co. (1981), 94 Ill. App. 3d 152, 158, the Appellate Court, Fifth District, found that condition three of section 2 — 616(d) was met where “[sjervice was made upon CT Corporation as the registered agent of Amax Coal Company, Inc. CT Corporation is also the registered agent in Illinois of Amax, Inc.” (See also Suste v. Sterr (1985), 135 Ill. App. 3d 652.) The court found error in the dismissal of the action where all five of the requirements were made and therefore reversed the decision of the trial court. Corn, 94 Ill. App. 3d at 159.

Defendant attempts to distinguish Corn, asserting that the parent-subsidiary relationship of the two corporations and the existence of common vice-president caused the court in Corn to find service on CT for one to suffice for service on the other.

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625 N.E.2d 911, 253 Ill. App. 3d 876, 192 Ill. Dec. 756, 1993 Ill. App. LEXIS 1830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/slezak-v-lisle-center-inc-illappct-1993.